FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider,
H. Balderas, Attorney General Santa Fe, NM Laurie Pollard
Blevins, Assistant Attorney General Albuquerque, NM for
A. Cain Chaparral, NM Pro Se Appellant
Defendant was found guilty of two counts of failure to
register as a sex offender under New Mexico's Sexual
Offender Registration and Notification Act (SORNA), NMSA
1978, Section 29-11A-4) (2005, amended 2013). We hold that
the two convictions violated Defendant's right to be free
from double jeopardy and remand to the district court to
vacate one of Defendant's convictions. We reject the
remainder of Defendant's arguments on appeal.
Defendant was convicted of third degree criminal sexual
penetration on September 5, 2008. Thereafter, he was required
to register as a sex offender pursuant to SORNA, which
required that he register every ninety days and also within
ten days of changing his address. See Section
29-11A-4 (F), (L); see also UJI 14-990 NMRA (sex
offender registration and notification chart). In 2012,
Defendant failed to comply with both requirements. Defendant
had last registered on March 7, 2012, and his next ninety-day
deadline to re-register was June 7, 2012. Section
29-11A-4(L)(1). In that period, Defendant was evicted and
required to move out of his home by June 17, 2012, thus
triggering a separate requirement that he register his new
address within ten days of his move. Section 29-11 A-4(F)
(2005). Defendant missed both deadlines and did not register
again until July 11, 2012. Defendant was arrested and elected
to proceed, pro se, with a bench trial. The district court
convicted Defendant on November 10, 2015, of two counts of
failing to register as a sex offender and sentenced him to
three years' incarceration.
Defendant, representing himself pro se at trial and on
appeal, raises numerous claims of error. This Court, in its
notice of assignment to the general calendar, requested that
the parties discuss any double jeopardy implications arising
from Defendant's convictions. Along with double jeopardy,
Defendant raises sixteen additional claims of error. We
address the double jeopardy issue and other claims properly
raised on appeal, but decline to review the remaining
unpreserved and undeveloped claims. In Lukens v.
Franco, our Supreme Court stated,
We remind counsel that we are not required to do their
research, and that this Court will not review issues raised
in appellate briefs that are unsupported by cited authority.
When a criminal conviction is being challenged, counsel
should properly present this court with the issues,
arguments, and proper authority. Mere reference in a
conclusory statement will not suffice and is in violation of
our rules of appellate procedure.
2019-NMSC-002, ¶ 5, 433 P.3d 288 (quoting State v.
Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873
P.2d 254)); Newsome v. Farer, 1985-NMSC-096, ¶
18, 103 N.M. 415, 708 P.2d 327 ("Although pro se
pleadings are viewed with tolerance, a pro se litigant,
having chosen to represent himself, is held to the same
standard of conduct and compliance with court rules,
procedures, and orders as are members of the bar."
(emphasis and citation omitted)).
Defendant was convicted of two counts of violating Section
29-11A-4, and argues on appeal that his convictions violate
his right to be free from double jeopardy. "The defense
of double jeopardy may not be waived and may be raised by the
accused at any stage of a criminal prosecution, either before
or after judgment." NMSA 1978, § 30-1-10 (1963).
"A double jeopardy claim is a question of law that we
review de novo." State v. Bernal,
2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.
"The Fifth Amendment.... functions in part to protect a
criminal defendant against multiple punishments for the same
offense." State v. Swick, 2012-NMSC-018, ¶
10, 279 P.3d 747 (internal quotation marks and citations
omitted). "This prohibition relates to two general
categories of cases: cases in which a defendant has been
charged with multiple violations of a single statute based on
a single course of conduct, known as 'unit of
prosecution' cases; and cases in which a defendant is
charged with violations of multiple statutes for the same
conduct, known as 'double-description' cases."
State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M.
211, 131 P.3d 61. Because Defendant is charged with two
violations of the same statute, this is a unit-of-prosecution
case. See Swick, 2012-NMSC-018, ¶ 33 (applying
unit of i prosecution analysis to two convictions based on
different subsections of the same - statute); State v.
Bello, 2017-NMCA-049, ¶ 9, 399 P.3d 380 (noting
that "double jeopardy claims based on multiple
violations of different subsections under one statute"
are analyzed "using the unit of prosecution standard
To determine the Legislature's intent with respect to the
unit of prosecution for a criminal offense, we apply a
two-step test. First, we review the statutory language for
guidance on the unit of prosecution.) The plain language of
the statute is the primary indicator of legislative intent.
If the statutory language spells out the unit of prosecution,
then we follow the language, and the unit-of-prosecution
inquiry is complete. If the language is not clear, then we
move to the second step, in which we determine whether a
defendant's acts are separated by sufficient indicia of
distinctness to justify multiple punishments under the same
statute. If the acts are not sufficiently distinct, then the
rule of lenity mandates an interpretation that the
legislature did not intend multiple punishments, and a
defendant cannot be punished for multiple crimes.
State v. Ramirez, 2018-NMSC-003, ¶ 47, 409 P.3d
902 (internal quotation marks and citations omitted).
Accordingly, in discerning the Legislature's intent, we
first look to the statutory language for guidance on the unit
The Legislature set forth the unit of prosecution within
SORNA by stating that "[t]he willful failure to comply
with any registration or verification requirement I set forth
in this section shall be deemed part of a continuing
transaction oroccurrence."" Section
29-11A-4(P) (emphasis added). The Legislature's use of
"any" indicates that it contemplated that more than
one violation may occur within a given period of
non-compliance before the offender next registers, and
expressly states that those violations are treated as part of
a single, ongoing transaction or occurrence. Cf.
Ramirez,2018-NMSC-003, ¶ 53 ("Significantly,
our Legislature chose not to employ the phrase 'any
child' or the word 'children' in place of a
child. Had it done so, Section 30-6-1(D)(1) would have
expressly contemplated that more than one child may be
affected by a single course of abuse by
endangerment[.]"). Thus, when a sex offender fails to
register after changing his address in violation of Section
29-11A-4(F) and also fails to register within the ...